Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

The CFA Enterprise Bargaining Dispute v 2

I’m writing this to make my conclusions clear. As I tell my students, if readers don’t understand your position it’s the fault of the writer, not the reader. In the first version of this post I set out my arguments but after much discussion with others (see the comments after my first post – The CFA Enterprise Bargaining Dispute (June 24, 2016)) I want to try and set out my conclusion (not so much the arguments) with greater clarity. My aim is not to have my position misrepresented by either the VFBV, the UFU, their members, the media or the government. My position is:

I make no judgment on whether the proposed Enterprise Agreement (EA) is in the best interests of the Country Fire Authority (CFA), the United Firefighters Union (UFU), the Volunteer Fire Brigades Victoria (VFBV), paid firefighters, volunteer firefighters or the community. That is not my task. Whether my conclusions mean that the EA should not be signed is a question I don’t address but I do note that I do not think that a conclusion that the proposed EA is contrary to s 6F of the CFA Act means that it cannot be signed. It may be that all things considered, the EA is in the best interests of the CFA, the UFU, the VFBV, paid and volunteer firefighters and the community, or just some of those parties. I make no comment on any of that. That is not my task. My role, on this blog, is to look at the law and consider it’s terms (I go back to the point on my first post of being a ‘legal positivist’). Accordingly my conclusion is based on ‘an abstract legal perspective’. Not only am I ‘missing out vital operational considerations’ it is not my role to address those considerations.

My conclusion is that the proposed EA (as it appears on the CFA website) is inconsistent with the CFA Act because s 6F says:“The Parliament recognises that the Authority is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner.”To give effect to that recognition there is the Volunteer Charter (s 6G), an obligation upon the CFA to give effect to that charter (s 6H) and an obligation upon the CFA “to develop policy and organisational arrangements that encourage, maintain and strengthen the capacity of volunteer officers and members to provide the Authority’s services” (6 H).

It is my view that having arrangements that distinguishes between firefighters, in operational issues, is inconsistent with s 6F and the intention that is implied by ss 6F-6I. So clauses that say the CFA will respond ‘seven professional firefighters’ rather than ‘seven firefighters’ or that ‘professional firefighters’ will not report to volunteers (level 3 multiagency events and CFA volunteer Incident Controllers excepted) is not consistent with s 6F nor s 6H ie they do not reflect “a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner” and they do not “strengthen the capacity of volunteer officers and members to provide the Authority’s services”. The clauses may, or may not, be perfectly sensible for the protection of the health and safety of the CFA’s employees or for the better protection of the community. Whether they are sensible or not, does not change my opinion that they are inconsistent with the Act.

There is no doubt much in the way in which the CFA operates that is inconsistent with s 6F and it is perhaps the case that s 6F is a section without meaning. It may be impossible to have a “fully integrated” service if the volunteers are rated “first and foremost”. But just because the objectives set out in ss 6F-6I have not been fully realised, and perhaps cannot be realised, doesn’t alter my conclusion that this proposed EA is contrary to those provisions in the Act. Some might think that being contrary to those provisions is trivial or irrelevant because those provisions can’t be, or aren’t given effect elsewhere by the CFA. That may be true and may justify the CFA agreeing to the EA. Others, no doubt, believe those provisions are central to the character of the CFA and the service the CFA provides to the Victorian community.

My objections would disappear if for example cl 83.5 referred to ‘firefighters’ rather than ‘professional firefighters’. The UFU and paid firefighters may have genuine and serious objections to that change on say OHS grounds, but that is not what I’m addressing. I’m addressing conflict with the CFA Act. If the section said ‘the CFA shall, within 90 seconds of the alarm, dispatch seven firefighters’ or ‘the CFA shall dispatch seven firefighters who hold listed minimum qualifications’ that might remove my objection. (I say ‘might’ because if you impose conditions that volunteers can’t meet, that could be implementing a policy that fails to “strengthen” or even hinders “the capacity of volunteer officers and members to provide the Authority’s services”. On the other hand if there are volunteers that can meet the necessary criteria, a clause like that would strengthen their “capacity … to provide the Authority’s services” by allowing them to work with their salaried colleagues). In any event I make no comment on whether those requirements would be reasonable or should be in the EA, nor whether a hypothetical provision would be consistent or inconsistent with the Act.

With respect to cl 36.4 I don’t see how that can be made consistent with the current Act.

One way to resolve the inconsistencies would be to repeal ss 6F-6I. I do think that legislators should ‘say what they mean and mean what they say’ so if the CFA isn’t, or can’t be, that which is described in s 6F then the section shouldn’t be there; but whilst it (and ss 6G-6I) are there, the CFA has to try to give meaning and effect to those sections.

As for cl 90.4 I see that gives ‘extraordinary’ powers to the UFU as it requires the UFU to ‘agree’ with the CFA on OHS issues, not merely be consulted, even though there are detailed consultation provisions in both the OHS Act and the proposed EA. An obligation to ‘agree’ gives the UFU authority at the workplace that is above and beyond that which employees and their associations have at other workplaces. Whether it is a good idea or not, and whether the hazardous nature of the work warrants that, is something I make no comment on. I’m merely drawing out the difference between the positions of the UFU as it would be under the EA compared to the OHS Act.

I don’t think all of the criticism of the EA are made out. For example in their other areas of concern the CFA refers to:“Clause 95 – Infrastructure – prescribes in unnecessary and restrictive manner where a volunteer can and cannot go within a fire station. It is divisive in its terms and can sensibly be managed by each fire station within existing guidelines without this prescription.”I can’t see that cl 95 (at least on the version of the EA on the CFA website) ‘prescribes in unnecessary and restrictive manner where a volunteer can and cannot go within a fire station’.

I can see that the EA restricts some of the powers of the Chief Officer (see Josh Gordon and Richard Willingham ‘CFA crisis: Victoria’s chief fire officer under pressure over union deal’ The Age (Online) (June 28, 2016)). The Chief Officer’s powers are set out in the Act. Section 29 says, inter alia, that the Chief Officer ‘shall at all times have the charge and control of all apparatus and other property of the Authority and shall cause the same to be kept in a fit state at all times for efficient service’. It doesn’t say that the Chief Officer shall determine what appliances the CFA will purchase or what uniforms it will buy. The obligation to agree with the UFU on items of equipment “to be used or worn by employees” does not mean ‘used or worn today’ so that it doesn’t imply that the UFU have to agree to ‘this appliance being sent to this fire’. It is about the decisions made by the CFA (not the Chief Officer) on what equipment to buy. I don’t therefore see that cl 90.4 affects the Chief Officer’s powers.

Section 28 however says:“The Chief Officer may, by written instrument, delegate to any person by name or to the holder of an office or position approved by the Authority, either generally or as otherwise provided by the instrument, any power or authority conferred on the Chief Officer under this Act or the regulations or any other Act or regulations.”One of the powers of the chief officer is to “have the control and direction of— (i) any brigade or brigades present at the scene of the fire” (s 30(1)(b)). Where cl 36.4 says “All employees covered by this agreement shall only report to operational employees” (level 3 multiagency incidents or volunteer CFA incident controller excepted) that may limit the Chief Officer’s power of delegation. It may mean that a volunteer cannot exercise the chief officer’s powers that have been delegated to that volunteer if he or she is not the incident controller (eg if they are appointed sector commander at a level 2 event; or are directed to lead a team made up of both volunteer and paid firefighters).

In conclusion, I still think:

The enterprise bargaining agreement, central to the sackings, is contrary to the CFA Act – because provisions are inconsistent with the idea of the CFA as “first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner”. It may be that the CFA is not really “first and foremost a volunteer-based organisation” nor does it operate as a service where “volunteer officers and members are supported by employees in a fully integrated manner” and it may be achieving that will never be possible. That doesn’t alter my conclusion.

It provides unprecedented powers within the CFA to the United Firefighters Union – in that it gives them greater powers than other unions under the Occupational Health and Safety Act.

The EA undermines the role and independence of volunteers – it undermines the role of volunteers by, in some circumstances, limiting the roles that volunteers can play, or the positions that they can take when working with their paid colleagues. It undermines the independence of volunteers in circumstances where matters which require UFU agreement also apply to volunteers (eg uniform choices). In that case the volunteer’s voice may not be fully heard as the UFU agreement is required regardless of the position adopted by volunteers.

Those sacked or resigning had no choice but to oppose the EA – if they believe it is inconsistent with the Act they have to oppose the EA as they have to comply with the legislation. If faced with what they see as irreconcilable, conflicting responsibilities to the Legislature and the Government of the day, then the appropriate action is to resign or to stand one’s ground and get sacked.

18 thoughts on “The CFA Enterprise Bargaining Dispute v 2”

The amendments made to the clause solve any issues with what you are talking about as a level 3 multi agency incident is what a ‘campaign fire’ would be classed as, and is what some volunteers are concerned about because they feel they won’t get to be sector commanders anymore.

The Act delegates the Chiefs authority to an incident controller, but their is also definition of what makes an incident controller, which is the most senior member of the brigade response area that the incident occurs. Therefore a volunteer incident controller is appointed allowing the exception.

The sector commanders are appointed at level 3 multi agency incidents, and these persons may come from volunteer ranks, therefore allowing the exception!!!

Chain of command allows that the incident controller gives direction to the crew at the scene, so staff would be reporting to the incident controller on arrival, not to the person holding the branch at the end of the hose, and he’s probably going to be a bit busy to be directing staff to do anything anyway!!

A sector commander at a level 3 incident takes his orders from the incident controller and via chain of command hands down those orders to strike team leaders to crew leaders.

“Level 2 incidents may be more complex either in size, resources or risk.
They are characterised by the need for:
• deployment of resources beyond initial response; or
• sectorisation of the incident; or
• the establishment of functional sections due to the levels of complexity; or
• a combination of the above.

Level 3 incidents are characterised by degrees of complexity that may require the establishment of divisions for effective management of the situation.”

Sector commanders can be appointed at a level 2 incident and a level 3 incident need not be ‘multi-agency’. There could be a level 3 event managed solely by the CFA. Unlikely perhaps, but possible.

In wording yes it there is the remotest of possibilities that a level 3 incident could be only CFA controlled but in practice it is never going to happen as the level of complexity would necessitate having other agencies involved.

The exemptions placed allow volunteers to take up the roles that they do and will fill and have staff answer to them!!

Though it is then all in the wording, and then that is all that the argument is about and if some wording was changed then we would have the actual intent. But there is stubbornness from both sides to make those changes!! The UFU lodged ambit claims and instead of re-writing claims and saying how about this the CFA has just decided to play hard ball!!

I’m glad that you have made it clear that “I do not think that a conclusion that the proposed EA is contrary to s 6F of the CFA Act means that it cannot be signed. It may be that all things considered, the EA is in the best interests of the CFA, the UFU, the VFBV, paid and volunteer firefighters and the community, or just some of those parties.”

But your final conclusion is still incorrect. “Those sacked or resigning had no choice but to oppose the EA.” They did have a choice, for a long period right up until they landed at the deadline. A choice they could have made would have been to request that the government propose a bill to amend the CFA Act to alter or repeal the problematic sections. Indeed, they *should* do that, because it should be clear to them that it is impossible for the CFA to comply with the aims of the legislation, irrespective of the EBA. They should have done that even prior to the EBA, and indeed should not have agreed to those sections in the first place in consultations with the coalition government which placed these sections in the Act in the first place. If they had made that choice 5 years ago, we might not be in this position right now.

If they were willing to let go of their documented anti-union ideology (Fire Services Review), a second reason why they should have asked the government to try to get Parliament to amend the Act, is because in their view those Sections force the CFA to block any attempts to further the workplace rights accorded to all workers under the OH&S Act and Fair Work Act.

If they weren’t willing to let go of the anti-union ideology (or even if they were), there’s still another option: they could request that the Government consider asking Parliament to amend the MFB Act to move into the Metropolitan Fire District all areas meeting criteria for requiring career firefighters.

All of these were options they could have tried in the interests of resolving the dispute, improving the function of the fire services, and increasing their capacity to comply with the legislation. Simply stubbornly refusing to sign the EBA was not the only choice available to them, at least, not until 5 minutes before midnight.

Only after all of these choices were tried and refused either by Government or Parliament, would they then have been required to oppose the EBA. And even then, after they were sacked, they would still have had the choice to explain what actually should be done to fix the legislation. But they haven’t, because they’re motivated by ideology. This is their real motivation, not upholding the letter of the law. Otherwise they would have proposed to fix the law.

When you say “amend the CFA Act to alter or repeal the problematic sections” I presume you mean remove the Volunteers charter and the section describing the CFA as “a volunteer organization supported by paid staff” Not only would this be totally unacceptable to the volunteers the result would be total capitulation to the UFU demands.
Moving the UFU CFA members to the MFB seems a bit unkind and has been discussed many times. The NSW RFS model certainly has merit and should be seriously examined

I did say, in my post, that one way to remove the inconsistency would be “repeal ss 6F-6I”. That would indeed ‘remove the Volunteers charter [ss 6G and 6H] and the section describing the CFA as “a volunteer organization supported by paid staff” [s 6F].’ Let me also assure you I’m not advocating one course of action over another. My view is that the EA is inconsistent with the CFA Act because of s 6F. There are two options to avoid inconsistency – amend the EA or amend the Act. I am not advocating one way or the other, just noting the logical options – if A is inconsistent with B you can remove the inconsistency by changing either A or B or both.

As you say removing s 6F is probably ‘totally unacceptable to the volunteers’ and amending the EA proposal is clearly unacceptable to the paid firefighters – that is why there’s a dispute. If either solution were acceptable to everyone it would have happened. No doubt the solution will be continued negotiation and a final EA that will be more, or less, inconsistent with the CFA Act.

I’m not sure why moving the paid firefighters to the MFB, and necessarily expanding the MFB boundaries would be ‘unkind’? The NSW RFS model is all volunteer firefighters. The paid firefighters are employed by Fire and Rescue NSW who provide ‘town’ brigades across the state, not just Sydney. It’s therefore not the “NSW RFS model…” but perhaps the “NSW model…” or the “NSW RFS/F&RNSW model…”

David, I’m also curious as to why you think “Moving the UFU CFA members to the MFB seems a bit unkind.” Unkind to who? It could be a win-win. Volunteers no longer need to worry about the workplace rights of career firefighters hurting their pride. Career firefighters no longer need to worry about the mobilisation of volunteer outrage for the purpose of attacking their working conditions. Yes there would also be much of value lost. However it seems to be where we are headed, for the reasons A.Prof Eburn points out in his reply.

I’m also curious as to why you follow that up by pointing positively at the NSW model. Wouldn’t the RFS/NSWFR model be very similar to a CFA/MFB model where the first became 100% volunteer and the latter 100% career? It could be accompanied by a name change for the second half if people were bothered by it. Rumours have been floating around about single fire service with a new name for a while. Not sure how volunteers were meant to fit into that, though. It seems fairly clear to me after what’s happened that they wouldn’t want to be lumped in with even more career firefighters.

Failing that, I’m not convinced it would be necessary to repeal those sections and the Charter. Surely if the Act incorporated equal consideration for the workplace rights of career firefighters, then the problem would go away.

Michael,
I was really replying to Brendan’s comment:
“A choice they could have made would have been to request that the government propose a bill to amend the CFA Act to alter or repeal the problematic sections.” Clearly as the Volunteers would never agree this was not an option.
My comment about being “unkind” to the MFB was ill considered and flippant. What I meant was that the MFB already has significant problems, and moving the UFU CFA members to the MFB may not necessarily be welcomed. I do agree that it appears to be the only practical solution but it maybe difficult to achieve.

Your definition of integration is incorrect when applying it to this scenario. Also, you have not considered the OH&S act which applies to paid firefighters. If you are going to compose pieces like you have done, please broaden your research base and therefore be able to form an unbiased, informed opinion.

* On what basis do you say my ‘definition of integration is incorrect when applying it to this scenario’?
* As noted this second post was intended to ‘set out my conclusion (not so much the arguments) with greater clarity’ The arguments, including the relevance of the OHS Act are set out in my first post The CFA Enterprise Bargaining Dispute (June 24, 2016).
* In what way would you suggest that my view is not ‘unbiased’?

I only hope that those responsible start to listen to the advice of experts, but regrettably I’ve yet to see any evidence that they are open to changing their position when presented with conflicting evidence.

S20 is the general duty of the authority. If the authority cannot meet its general duty to protect life and property, to suppress fires and protect Victorian communities does it not have the power under s20AA to do all things necessary or convent to improve its performance.

Section 6 talks about volunteers supported by career staff. That could be interpreted as cold supported by career staff to achieve section 20. If the volunteers are not meeting s20 under performance criteria set by governing body they can employ and take all steps necessary to improve the authorities power to meet s20 yes??

The duty of taking superintending and enforcing all necessary steps for the prevention and suppression of fi and for the protection of life and property in case of fire and the general control of all stations and of all brigades and of all groups of brigades shall, subject to the provisions of this Act, so far as relates to the country area of Victoria be vested in the Authority.

Section 20 says that it is the CFA that the responsible fire agency for country Victoria. It doesn’t say anything about performance standards or how the CFA is to perform its tasks. It makes it clear that it’s the CFA, not local governments, or industry brigades, or the MFB or the like that is responsible for fire management in Country Victoria.

Section 20AA is entitled ‘General powers of Authority’. This section gives the CFA authority to enter into contracts or other arrangements.

I don’t see that s 20AA is relevant in this discussion. It is clear that the CFA can employ staff to meet the needs of the Victorian community, that is indeed what they do. Presumably the CFA has determined where the demand for its services cannot be met solely by volunteers and that is where they have integrated stations.

As for s 20 it doesn’t impose specific obligations upon the CFA that is to meet particular standards. Subject to anything that might come from Inspector-General for Emergency Management (see Emergency Management Act 2013 (Vic) Part 7) the CFA has a broad discretion on how it meets its duties. If the community thinks that the level of service does not meet their demands, then the response lies in politics, not the law.